We are always awed by the courage of our clients to discuss intimate issues with us. This is never more apparent than in our discussions of death and dying with our estate planning clients. We think it is important to educate our clients about the probate process and speak transparently about what happens to our clients’ assets upon death. We continue these difficult discussions as our clients near death, and then continue the conversations with their loved ones or their fiduciaries as end-of-life financial and medical decisions become more pronounced. When death occurs, we assist loved ones and Executors, as needed, in those first difficult days, filled with decisions to make when grief is the most intense. In keeping with our holistic philosophy, we work closely with the Executors and Administrators of our clients’ estates to actively assist with these initial decisions, and in most cases, recommend co-counsel attorneys, expert in probate and estate administration, to assist in the ongoing process. We pride ourselves in finding co-counsel who we know will work best with a particular client or circumstance. We will then offer “behind the scenes” support for our clients, as they make their way through the complexities.
How does an attorney assist an Executor in handling the probate of a will or estate administration?
Generally an attorney assists in the following areas:
Assists the Executor in organizing financial and family information so that the probate process is efficient
Assists the Executor in identifying and then marshaling all the assets of the estate
Assists the Executor in identifying and settling all debts and tax obligations
Assists the Executor in preparing state and federal estate tax returns and preparing formal and informal accounting for presentation to the estate beneficiaries, if necessary
What is Probate?
Many people loosely use the term “probate” to refer to the entire timeline of events and actions that occurs from the moment a person dies until the process of settling the person’s estate is finally concluded. But this timeline can be broken down into many different steps and processes, some of which may require an attorney and some of which may not, depending upon the complexities of the estate.
Probate is the process of filing and validating a deceased person’s will in the appropriate court. This process can be rather simple, or very complex, if a person dies with no apparent next of kin or very distant or litigious relatives. In some instances it is best to avoid probating a will by holding assets in an inter vivos Trust, or by having non-testamentary designations on your financial accounts. But for most situations, probate can be concluded within a few weeks/months of its beginning, and the end result is the formal appointment of an Executor (and Trustee, if the will designates a Trustee of a testamentary trust. Once probate is reached, the process of marshalling testamentary assets and paying debts of the estate can begin. In some instances, estate tax returns must be prepared and filed. Eventually, as the timeline of actions progresses, bequests can be distributed to beneficiaries.
How do I avoid the complexities of probating a will?
Some assets are transferred automatically upon your death to your loved one or charity. These “Non-Testamentary” assets are quite common and most of our clients have both non-testamentary assets and “testamentary” assets that can only be transferred by probating a will.
Here are some examples of Non-testamentary assets: